Last week, the Ninth Circuit ruled in Lemmon v. Snap, Inc., No. 20-55295 (May 4 2021), that 47 U.S.C. § 230 (“Section 230”) did not bar a claim of negligent product design against Snap, Inc., reversing and remanding a lower court ruling.
Continue Reading Ninth Circuit Denies Section 230 Defense in Products Liability Case

A number of legislative proposals to amend Section 230 of the 1996 Communications Decency Act (“Section 230”) have already been introduced in the new Congress.  Section 230 provides immunity to an owner or user of an “interactive computer service” — generally understood to encompass internet platforms and websites — from liability for content posted by a third party.

On February 8, 2021, Senator Mark Warner (D-VA) introduced the Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act (“SAFE TECH Act”), cosponsored by Senators Amy Klobuchar (D-MN) and Mazie Hirono (D-HI).  The bill would narrow the scope of immunity that has been applied to online platforms.  Specifically, the SAFE TECH Act would amend Section 230 in the following ways:
Continue Reading SAFE TECH Act Would Limit Scope and Redesign Framework of Section 230 Immunity

On September 30, 2020, the French Court of Cassation (“Court”) ruled in favor of an employer that dismissed an employee because of the contents of a Facebook post (the decision is available here, in French).  In particular, the employee in this case posted a photograph of a new clothing collection of the employer on

FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA).  To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.
Continue Reading FCC Announces Section 230 Rulemaking

The Department of Justice has released a draft bill to amend Section 230 of the Communications Decency Act of 1996, joining the chorus of voices seeking to limit the statute’s liability protections (covered here, here, here, and here).  The DOJ’s draft bill incorporates recommendations from its June 2020 report analyzing Section 230, as well as President Trump’s Executive Order on Preventing Online Censorship.  According to Attorney General William Barr, DOJ’s proposal “recalibrates Section 230 immunity,” aiming to “incentivize online platforms to better address criminal content on their services and to be more transparent and accountable when removing lawful speech.”
Continue Reading DOJ Proposes Legislation to Limit Section 230 Immunity

Last week, the Better Business Bureau’s National Advertising Division (NAD) announced a new expedited process for digital advertising challenges.  The SWIFT (Single Well-defined Issue Fast Track) Process will allow businesses to address concerns of transparency and truthfulness on an accelerated basis, with decisions rendered within twenty business days of case initiation.  The SWIFT process is currently limited to challenges involving one of three issues:  the prominence or sufficiency of disclosures, including disclosure issues in influencer marketing, native advertising, and incentivized reviews; misleading pricing and sales claims; and misleading express claims that do not require review of complex evidence or substantiation such as clinical testing or consumer perception evidence.
Continue Reading The BBB’s National Advertising Division Launches Fast-Track SWIFT Process for Digital Advertising

Back in 2013, we published a blog post entitled, “European Regulators and the Eternal Cookie Debate” about what constitutes “consent” for purposes of complying with the EU’s cookie rules.  The debate continues…  Yesterday, the ICO published new guidance on the use of cookies and a related “myth-busting” blog post.  Some of the

Earlier this month, the FTC settled with two social media influencers for failing to provide adequate disclosures in their promotions of their company, and issued 21 warning letters to other influencers it felt continued to violate the FTC Endorsement Guidelines in spite of the educational letters the FTC had sent earlier this year. In addition to the new “FAQ” examples the FTC provided in its guidance materials and this blog post (which contains an instructional video), the FTC hosted a live Twitter chat to directly answer questions regarding its influencer disclosure policies. 
Continue Reading FTC Twitter Chat: Influencers 101

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its ruling on appeal in the case of Bărbulescu v. Romania, concerning alleged unlawful workplace monitoring of Mr. Barbulescu’s private communications.

Overturning the ECtHR’s prior ruling in the case (covered by Inside Privacy here), the Grand Chamber held that Romanian courts had not adequately and fairly weighed up the competing interests of Mr Barbulescu and his employer.  That defect of justice meant that Romania had failed to proactively protect Mr Barbulescu’s right to privacy, as required by its membership of the European Convention on Human Rights.

The Grand Chamber held that Mr Barbulescu’s right to privacy extended to his workplace, despite his private use of a work computer constituting a breach of his rules of employment.  The Grand Chamber held that while privacy in the workplace can be restricted “as necessary,” “an employer’s instructions cannot reduce private social life in the workplace to zero,” since the right to privacy does not necessarily depend on an individual’s reasonable expectations, and can be enjoyed in public and in the workplace, notwithstanding prohibitions and warnings given to the individual.  A fulsome balancing exercise was therefore required in cases such as these.

The Grand Chamber underlined that provided national courts undertake an adequate balancing exercise, they have some discretion as to the actual result (i.e. whether the employer’s or employee’s rights prevail in a given case).  Similar discretion is also enjoyed by national legislators and constitutions when setting underlying rules on workplace privacy, provided such rules – and a means to enforce them – are actually in place.

Nevertheless, the ruling states that workplace monitoring must always be limited to what is necessary for a legitimate purpose, and should be accompanied by a range of safeguards, normally including prior notice to employees – particularly when the content of communications is concerned.
Continue Reading New Ruling in European Employee Monitoring Case

The FTC recently announced that it reached a settlement with two social media influencers, Trevor Martin and Thomas Cassell, for deceptively endorsing their owned and operated online gambling service “CSGO Lotto” without disclosing that they were the owners of the site, as well as paying other well-known social media influencers to promote the site without requiring them to disclose the payments in their posts. In addition, the FTC issued warning letters to 21 out of the 90 social media influencers it had sent educational letters to earlier this year, citing specific social media posts that they felt still failed to “clearly and unambiguously” disclose a material connection between the influencers and the brands or products they were promoting. The letters asked them to respond in writing, by September 30th, advising staff of whether they do, in fact, have a material connection with the brands/products cited in the letters and, if so, describing how they will ensure such relationship is clearly disclosed going forward. Finally, the FTC updated its guidance on its official Endorsement Guidelines with additional examples featuring common social media advertising mechanisms such as Instagram, Snapchat, and Facebook.
Continue Reading FTC Reaches Settlement with Influencers; Issues Updated Guidance